When you look at the Bankruptcy Code, the usage the undue difficulty standard within the reaffirmation contract supply suggests that the undue difficulty analysis should mainly concentrate on the present economic circumstances of a debtor. As recognized by scholars, the reaffirmation contract supply is the actual only real other place undue difficulty appears into the Bankruptcy Code bes 59 See Brief for Professor Rafael Pardo as Amicus Curiae, p. 11–13, Murphy v. U.S. Dept. Of Educ., No. 14-1691 (1st Cir. Oct. 25, 2016). An agreement that makes the debtor legally bound to repay a debt that would otherwise be discharged is enforceable only if a variety of requirements meant to safeguard the debtor’s fresh start are all satisfied under 11 U.S.C. § 524, the provision governing reaffirmation agreements. 60 11 U.S.C. § 524(m)(1).
Among these demands includes language that the agreement must “not impose a hardship that is undue the debtor or perhaps a dependent associated with the debtor. ” 61 Id. The Bankruptcy Abuse Prevention and customer Protection Act of 2005 (BAPCPA) clarified the hardship that is“undue standard within the reaffirmation agreement context by prov 62 Id. In the event that presumption arises, it could be rebutted only when the debtor has the capacity to 63 Id. Consequently, the supply is targeted on the debtor’s ability to repay a debt dependant on the debtor’s disposable earnings, which finally measures the end result that the reaffirmation contract could have in the future livelihood of this debtor.
Although the Bankruptcy Code itself sheds some light on exactly exactly what the undue hardship standard means, it’s worth searching beyond it to many other conditions of federal code that apply the hardship that is undue to discern a far more coherent way of interpreting and applying the typical for purposes of § 523(a)(8) in the Bankruptcy Code. By analyzing the undue hardship standard into the context of public security benefits, work discrimination, pupil aid that is financial, taxation re payment extensions, social protection advantages, and development in civil litigation, common threads exist that suggest that an evaluation of good faith or conduct generally speaking in an undue difficulty analysis is misguided. In reality, other law that is federal strong help when it comes to summary that Congress meant undue difficulty to spotlight the effect or impact an alleged difficulty is wearing an individual as opposed to assessing the cause of the difficulty, whether a person has made a great faith work in order to avoid their hardship, and perhaps the difficulty will continue.
B. Public Safety Officer Death Benefits
In terms of cons 64 See Brief for Professor Rafael Pardo as Amicus Curiae, p. 11–13, Murphy v. U.S. Dept. Of Educ., No. 14-1691 (1st Cir. Oct. 25, 2016). A prime exemplory case of this might be based in the Public Safety Officers’ pros Act installment loans illinois, which established a course to prov 65 34 U.S.C. § 10281(m). The supply, 34 U.S.C. § m that is 10281(, which provides the phrase undue difficulty, concerns collection actions of advantages which are disbursed pursuant to a statute enacted retroactively or in mistake, and reads in whole the following: “The Bureau may suspend or end collection action on a sum disbursed pursuant to a statute enacted retroactively or elsewhere disbursed in mistake under subsection (a) or (c) of the area, where such collection could be not practical, or would cause undue difficulty up to a debtor whom acted in good faith. ” 66 Id. An undue hardship serves as a defense against collection actions for benefits disbursed in error or benefits disbursed under a statute enacted retroactively in other words.
Undue hardship in this context will not be interpreted in the event legislation, laws, or gu 67 Duncan v. Walker, 533 U.S. 167, 174 (2001). Easily put, a statute shouldn’t be interpreted in a fashion that renders a word or expression superfluous whenever this kind of interpretation could be avo 68 united states of america v. E-Gold, Ltd., 550 F. Supp. 2d 82, 93 (D.D.C. 2008). If the undue hardship standard had been to add an inquiry into good faith, the second half of § 10281(m) utilising the clause “acted in good faith” will be insignificant, if you don’t wholly superfluous, because the undue hardship analysis would already add an inquiry to the good faith regarding the debtor. The Supreme Court has explained, it really is “reluctant to take care of statutory terms as surplusage” in almost any environment. ” 69 Duncan v. Walker, 533 U.S. At 174; see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995); see also Ratzlaf v. United States, 510 U.S. 135, 140 (1994) (“judges should wait to deal with terms that are statutory surplusage in every environment). This exemplory case of statutory construction which makes an express distinction between undue difficulty and good faith provides strong help when it comes to summary that a meaning for undue hardship when you look at the bankruptcy context must not include facets that evaluate good faith efforts or pre-bankruptcy conduct that is debtor’s.
C. Employment Discrimination
The use of the hardship that is undue as being a protection for an employer whom cannot make accommodations for a member of staff also supports the final outcome that the undue difficulty analysis should give attention to an indiv 70 See Gregory S. Crespi, effectiveness Rejected: Evaluating Undue Hardship Claims underneath the Us americans with Disabilities Act, 26 Tulsa L. R. 1, 2–3 (1990). Especially, the statute provides that discriminating:
Against a professional indiv 71 42 U.S. C § 12112.